CAMERON, Judge.
Petitioner, John Leroy Jones, seeks, by certiorari, to set aside the Industrial Commission's "Order Denying Rehearing and Affirming Previous Decision Upon Rehearing", dated 21 October, 1963. The facts, so far as they are pertinent to a determination of this matter are as follows:
Petitioner sustained an industrial injury on 27 May, 1961. He was working for respondent Johnson-Sampson Construction Company in the capacity of a laborer.
The Commission issued its "Final Findings and Award" in December, 1961, ordering that the applicant's case be closed and that the applicant take nothing further from the Industrial Commission of Arizona. On 15 February, 1963, petitioner filed a "petition and application for readjustment or re-opening of claim", alleging new and additional disability as a result of his injury of 27 May, 1961. Medical examinations were ordered by the Industrial Commission, and pursuant to a report filed by Dr. Elkins the Commission issued its findings and award denying a re-opening of the claim. Petitioner filed notice for rehearing, and a rehearing was granted and held on 6 August, 1963, in Tucson, Arizona. At said hearing, both the petitioner and the Workmen's Compensation Fund were represented by counsel. The following discussion took place at the hearing:
Attorney for petitioner then went through the files and requested a list of people that he desired the Commission to subpoena and made the following statement at page 17 of the Report of Transcript:
Later on, attorney for petitioner requested that the hearing be continued to a later date, and requested that the people previously
The issues raised in this matter concern the right of the petitioner to cross examine witnesses whose testimony, reports and ex parte affidavits supply the facts or "evidence" upon which the award of the Commission is based, and further, whether or not the petitioner waived this right by failing to request the Commission, in writing, to issue subpoenas prior to the date of the 6 August, 1963, hearing.
The statutes provide that the Industrial Commission may adopt rules of procedure, A.R.S. § 23-922, and that the Commission shall not be bound by the rules of evidence or by "technical or formal rules of procedure", A.R.S. § 23-942. Thus the parties here are not bound by superior court rules of procedure, but by the rules of procedure adopted by the Commission. Transcontinental Bus System, Inc. v. Industrial Commission, et al., 71 Ariz. 209, 225 P.2d 701 (1950). Our Supreme Court has further stated on more than one occasion, that when the Commission makes an award, it is acting judicially and is therefore bound to follow the general principles of law, Bradley v. Industrial Commission, 51 Ariz. 291, 76 P.2d 745 (1938); Barber v. Industrial Commission, 47 Ariz. 294, 55 P.2d 654 (1936), and has also stated that the parties have the right of cross examination. Schnatzmeyer v. Industrial Commission, 78 Ariz. 112, 276 P.2d 534 (1954); Simpkins v. Industrial Commission, 45 Ariz. 186, 42 P.2d 47 (1935).
The attorney for the Industrial Commission relies heavily on Rule 35 of the "Rules of Procedure Before the Industrial Commission of Arizona", which reads in part as follows:
The Commission urges in its brief that "to allow a claimant at each turn of the events to demand the right to cross examine further witnesses without any attempt to show materiality of such demand, would result in a chaotic condition and extend hearings in a given matter ad infinitum."
We do not agree. We feel that Section 35 of the Rules of Procedure Before the Industrial Commission, must be read together, and in the light of, Rule 30:
Rule 35 merely gives the party the right to apply to the Industrial Commission for a subpoena to be served on any party the petitioner wishes to call for direct examination. It gives the petitioner the right to use the subpoena powers of the Commission, at petitioner's own expense, to effect the attendance of what otherwise might be reluctant witnesses. Rule 35 cannot be used to restrict the right of the parties to cross examine a person who has given any evidence in the matter. We are aware that the Commission has in its file, many independent reports of facts upon which it may base its investigation of a particular claim, and we do not wish to restrict the Commission's right to make independent investigations and examinations of the facts concerning the claims for
Attorney for respondent Industrial Commission urges that the petitioner has the "opportunity" to cross examine if he has the right to call witnesses for the purpose of cross examination. We do not agree with this position. Under the Arizona cases cited above, and Rule 30, the party entitled to cross examination must be presented with an "opportunity" or occasion wherein he may cross examine persons whose testimony, ex parte affidavits, reports or statements the Commission intends to use or may use as evidence upon which to base its award. The party entitled to the right or "opportunity" for cross examination should not be compelled to expend money or effort in obtaining that "opportunity". McCarthy Stevedoring Corporation v. Norton, 40 F.Supp. 957 (1939). It is the responsibility of the Commission to provide the proper safeguards for ascertaining the rights of the parties in the admission of testimony including hearsay. Gomez v. Industrial Commission, 72 Ariz. 265, 233 P.2d 827 (1951).
The Arizona Supreme Court has repeatedly held that the Workmen's Compensation Act is remedial and its terms should be liberally construed in order to effectively carry out the purposes for which it was intended, Dunlap v. Industrial Commission, 90 Ariz. 3, 363 P.2d 600 (1961); Nicholson v. Industrial Commission, 76 Ariz. 105, 259 P.2d 547 (1953), and this also applies to interpreting the "Rules of Procedure Before the Industrial Commission of Arizona", published under the provisions of the Workmen's Compensation Act.
This question has been before the federal courts many times, and was discussed in 1951 as follows:
This brings us to the next question. Attorney for respondent Industrial Commission urges that under Rule 29 of the Rules of Procedure Before the Industrial Commission, the petitioner is deemed to know the contents of the file and to admit everything in the file unless written objection is filed with the Commission. Counsel urges that having failed to file these objections, petitioner admits them, and thereby waives his right to cross examination concerning matters in the file. Rule 29 reads as follows:
It should be noted that the file in this case contained some 136 different "records" in addition to Exhibit "A", all of which, it is urged, petitioner is deemed to know and "admit the truth and correctness" thereof. Even if we assume, arguendo, that petitioner has waived his right to contest the "truth and correctness" of the records in the file by failing to file written objections thereto as required by Rule 29, this does not mean that petitioner has thereby waived his right of cross examination also. The fact that a party may admit the truth and correctness of a report in the file is not a waiver of the party's right to cross examine the person who made that report. The question of waiver of the right of cross examination has been mentioned in a California case as follows:
While we would have been happier had petitioner made his objections earlier, still he did request a continuance at the hearing on 6 August, and construing both the acts and the rules liberally in favor of the petitioner, we feel that the Commission
It is therefore ordered that the award be set aside.
DONOFRIO, J., and MELVYN T. SHELLEY, Superior Court Judge, concur.
NOTE: Chief Judge HENRY S. STEVENS having requested that he be relieved from consideration of this matter, Judge MELVYN T. SHELLEY was called to sit in his stead and participate in the determination of this decision.
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